RADHESHYAM BHUVANISHANKAR TRIVEDI Vs. NASIR HUSSAIN MOHAMMAD SADIQ

JUDGEMENT

(1.) THIS appeal has been filed aggrieved by the Award dated 22nd July, 1988 passed by the Member, Motor Accidents Claims Tribunal, Mandsaur in Claims Case No. 21 of 1986, whereby the application of the appellants filed Under Section 110-A of the Motor Vehicles Act has been dismissed by the learned Tribunal.

(2.) THE facts leading to this petition, in short, are that one Abhay Kumar, aged about 10 years, met with an accident on 7-1-1986 at about 12. 15 p. m. on Laduna Road at Sitamau. The said Abhay Kumar was the only son of the claimants. According to the applicants-appellants on 7-1-1986 at about 12. 15 p. m. when Abhay Kumar, was going with his school-mates from his school to Argada playfield for attending some function, bus No. MPF 7789 belonging to respondent No. 1 and being driven by the respondent No. 2 at a high speed rashly and negligently, dashed against Abhay Kumar and crushed him under the rear and front wheels as a result of which Abhay Kumar received injuries and succumbed to them. Abhay Kumar was immediately taken to the Sitamau hospital where he was declared dead. The incident was reported at the police station Sitamau by Kailashchand (P. W. 2) who is the solitary eye witness in the case. According to the claimants the deceased was a very intelligent child and they had high hopes of the boy settling in high position. Because of the sudden death of their son they have lost all hopes of the future and have undergone great suffering and mental agony. Therefore, on the count of mental agony and suffering, loss of future expected earning from the deceased, the applicants made a claim of Rs. 1,00,000/- to be awarded as compensation.

(3.) THE respondent No. 1 admitted that bus No. MPF-7789 belonged to him on the date of the accident and it was being driven by the respondent No. 2 and that the bus was insured with the respondent No. 3. However, it was denied that the bus was being driven rashly and negligently by the driver. Accordingl to respondent No. 1, the deceased was- author of his own misfortune and it was due to his negligence that he met with the accident. The respondent No. 2, the driver, has denied the claim on the ground that on the relevant date he was neither driving the bus nor he was in the employment of respondent No. 1. According to him he has been falsely implicated in a criminal case. The respondent No. 3 Insurance Company took a defence that on 7-1-1986 when the accident took place Nasir Hussain, the owner of the bus was not the person insured with the Company. The bus formerly belonged to one Hastimal Kothari and it was insured in his name. The insurance was valid for a period of one year from 29-1-1985. During the continuance of this insurance Hastimal transferred the vehicle to the present respondent No. 1 and it was after the accident at about 3 p. m. on 7-1-1986 that the respondent No. 1 applied to the Insurance Company for the transfer of the insurance in his name and accordingly the insurance was transferred in his name at 3 p. m. The fact of the accident was suppressed from the respondent No. 3 and, therefore, the transfer certificate is void because of the suppression of the material fact. It has also been pleaded that Nasir Hussain has given in writing to the Insurance Company that he would be liable for all the facts prior to the insurance. It was also pleaded that the vehicle was not being driven by a person holding a valid licence and the driver was also not in the employment of respondent No. 1.